The Complainant in this
administrative proceeding is X/Open Company Limited with its principal place
of business at Apex Plaza, Block A 2nd Floor, Forbury Road, Reading,
Berkshire RG1 1AX, United Kingdom. The Respondent is Marshall Sorenson whose
address is 9864 Grand Verde Way #1513, Boca Raton, FL 33428, United States of
America.

2. The Domain Name and
Registrar

The domain name in dispute
is <unix.org>. The domain name was registered by Respondent with Network
Solutions Inc. 505 Huntmar Park Drive, Hendon, VA 20170, United States of America.

3. Procedural History

On March 27, 2002, the
WIPO Arbitration and Mediation Center ("the Center") received from
the Complainant by e-mail a Complaint for a decision in accordance with the
Uniform Policy for Domain Name Dispute Resolution. The Center received a hard
copy of the Complaint on April 3, 2002. On April 3, 2002 the Center forwarded
an Acknowledgement of Complaint to the Complainant. On April 5, 2002 the Center
forwarded a Request for Registrarís Verification to Network Solutions Inc. On
April 8, 2002 the Registrar confirmed that the domain name <unix.org>
was registered by the Respondent Marshall Sorenson. The Center completed its
Administrative Compliance Check on April 22, 2002 and ascertained that the Complaint
was filed in compliance with the requirements of the Policy, Rules and the Supplemental
Rules and that payment had been properly made to the Centre.

On April 22, 2002 the Center
forwarded a Notification of Complaint to the Respondent by e-mail and courier.
The Center advised the Respondent that the Administrative Proceeding was commenced
on April 22, 2002 and that a response was due by May 12, 2002. The
Complainant in this proceeding elected for an Administrative Panel consisting
of a Sole Panelist. The Respondent's Response was received by the Center by
e-mail on May 15, 2002 and in hard copies on May 16, 2002.

Mr. Ross Carson was appointed
as the Sole Panelist and a Notification of Appointment of Administrative Panel
and Projected Decision Date of June 24, 2002 was issued by the Center on June
10, 2002. The case file was transmitted to the Panelist Mr. Ross Carson
on June 10, 2002.

4. Factual Background

Complainant X/Open Company
Limited is a software technology company involved in the development of all
operating systems, specifically a comprehensive open systems environment.

Complainant is the owner
of the trademark UNIX world-wide ("UNIX Marks"). X-Open used to be the exclusive
licensee of the UNIX marks. Under the terms of the license agreement X/Open
had the option to have the UNIX marks assigned to it. X/Open exercised its right
and is now the registered owner of the UNIX Marks.

The Complainant is the
owner of registrations or pending applications for UNIX in relation to computer
programs, computer related goods and computer related services in over seventy-five
countries throughout the world (Annex 3, pages 22 to 34). Copies of signed License
Agreements between X/Open and a number of licensees are attached marked as Annex
4. Among the licensees of X/Open are most of the leading computer companies
of the world including Unisys Corporation, Siemens Nixdorf Informationssysteme
AG, Sun Microsystems, Inc., Novell Inc., Hewlett-Packard Company, AT & T
Global Information Solutions, Bull S.A., International Business Machines Corporation
(IBM), Digital Equipment Corporation, The Santa Cruz Operation, Inc., Hitachi
Limited, Silicon Graphics, Inc., Stratus Computer, Inc., Dansk Data Elektronik
A/S, Fujitsu Limited, NEC Corporation and NCR Corporation. X/Open, its predecessors
in business, and licensees have made extensive use of the trademark UNIX throughout
the world in respect of computer operating systems, computer related goods and
computer related services. The extent of use of the mark UNIX is so extensive
that most major companies in the computer field are an approved user of the
trademark UNIX.

5. Partiesí Contentions

A. Complainant

Complainant contends that

(a) The disputed domain
name is identical to the Complainantís UNIX Marks. The .org part of the domain
name should be disregarded as being of a generic nature.

(b) Respondent has no
rights or legitimate interests in the domain name. The word UNIX is an invented
word used in relation to computer software. UNIX is not a name which traders
would legitimately choose unless to create an impression of an association with
the Complainant. Complainant has not licensed or otherwise permitted the Respondent
to use any of the UNIX marks nor has it licensed or otherwise permitted the
Respondent to apply for or use any domain name incorporating any of the UNIX
marks.

(c) The domain name
has been registered in bad faith.

Complainantís UNIX marks
are very well known and it is extremely unlikely that Respondent would not have
been aware of that.

By virtue of the wide
spread use and reputation of the UNIX trademark, members of the public and persons
in the industry would believe that the entity owning the domain name <unix.orgt>
was the Complainant or was in some way associated with or connected with the
Complainant.

Any realistic use of the
domain name must misrepresent an association with Complainant and its goodwill,
and results in passing off and trade mark infringement.

Complainant submits that
because Complainant's registration for the UNIX Marks in the U.S. and other
countries precede Respondent's registration of the domain name in dispute, Respondent
should be held to have constructive notice of the Complainant's mark at the
time of registering the domain name.

Complainant submits that
Respondent was under an obligation, prior to registration, to perform a Trade
Mark search. If Respondent had been acting in good faith he might have registered
a different domain name entirely. Complainant cites the decision in Chernow
Communications Inc. v. Jonathon D. Kimball, WIPO
Case No. D2000-0119, (May 18, 2000). A copy is provided as Annex 6 to the
Complaint.

Complainant contends that
the fact that the registration of the unix.org domain name has been parked since
August 20, 2001, a period of seven months from the domain name registration,
is evidence that Respondent does not intend to use the domain name for bona
fide purposes.

B. Respondent

Respondent contends that:

(a) The Respondent requests
the Panel to deny the remedies requested by the Complainant.

(b) The Respondent requests
that the Panel make a finding of reverse domain hijacking based on the preponderance
of evidence in the Response and the following:

(i) Complainant submitted
other complaints against the registering parties of <unix.com>, WIPO Case
No. D2002-0294, and <unix.net>, WIPO Case No. D2002-0296, on the same
date as this complaint. Respondent feels that the Complainant has been opportunistic
in this regard to group Respondent with other organizations by simply modifying
the unix.net complaint by replacing all occurrences of <unix.net> with
<unix.org>.

(ii) The lack of any
attempt on the part of Complainant to contact Respondent before submitting the
complaint to pursue a resolution to the dispute is evidence of the complaint
being submitted as an afterthought once the complaint against <unix.com>
and <unix.net> were prepared. The Respondent submits that the above facts
exhibit malice towards the Respondent, as well as abuse of the Policy.

The Respondent's first
submission is that the Complainant's rights in the UNIX trademark are not enforceable
due to obvious and widespread alleged non-enforcement of use of UNIX by others
resulting in the trademark becoming a generic identifier of the goods and services
provided under the trademark. The Respondent attached as Annex 2 and Annex 3
alleged instances of generic use of the trademark UNIX. Respondent submits that
complainant failed to enforce the trademark early on, and could not possibly
recover the trademark as an identifier of Complainant's goods and services at
this point. Respondent submits that the technology community widely uses the
term "unix" to refer to a type of operating system, not a brand of operating
system.

The Respondent contends
that the Complainant has failed to prove the three elements in Paragraph 4(a)
of the Policy.

With respect to Paragraph
4.a.(i) of the Policy, Respondent does not refute the allegation that the domain
name in dispute is identical to Complainant's trademark, but submits that the
trademark UNIX has become generic due to non-enforcement as stated above.

With respect to Paragraph
4.a.(ii) of the Policy Respondent refutes the allegation that Respondent has
no rights or legitimate interests in respect of the domain name in dispute.
The Respondent submits that the Complainant's Trademark License Agreement (see
Complaint Annex 3, Schedule 5 "Trademark Usage Guide" sec. 1.3 "Use of Trademarks
by Third Parties") permits third parties to use the UNIX trademark in articles
and for editorial use. The Respondent submits that it was the intention of Respondent
to build a non-commercial site of editorials and articles about and in support
of the UNIX system based operating systems and compatible software and such
activity was permitted by Complainant.

With respect to Paragraph
4.a.(iii) of the Policy which requires the Complainant to prove that the domain
name in dispute has been registered and is being used in bad faith the Respondent
made a number of submissions.

The Respondent purchased
the domain name in dispute for $5,000 USD and poses the question why would the
Respondent make such an expenditure without the intent to make a bona fide use
of the domain name. The Respondent restates Respondent's intention to develop
a non-commercial site for the domain name containing editorials and articles
in support of UNIX system-based operating systems and compatible software for
the technology community.

The Respondent submits
that Respondent started developing the website in August, 2001, immediately
after entering into the agreement to purchase the domain name in dispute. A
copy of the partially developed web page is attached to the Response and marked
Annex 5. The Respondent intended to follow the Complainant's guidelines for
third party use. The partially developed web page has a clearly visible attribution
to Complainant's ownership of the trademark UNIX as required in Complainant's
trade-mark license agreement for third parties. Respondent states that Respondent
intended to include hyperlinks to Complainant's web sites on its website. The
Respondent had to halt work on the website almost immediately after acquiring
the domain name in dispute. The partially developed web page has not been edited
since August 15, 2001, which was five days before the domain name was transferred
to Respondent's name.

Respondent submits that
he does not have a history of being a cybersquatter. Respondent states Respondent
owns the domain names owned by the Respondent's corporation Byterage, Inc. Respondent
submits that Respondent did not contact or solicit Complainant to sell Complainant
the domain name in dispute for profit.

Respondent submitted that
the Complainant has failed to establish evidence of registration and use in
bad faith (Paragraph 4.b of the Policy). The Respondent submits that there has
been no use of the domain name in dispute to date and therefore there could
not be a likelihood of confusion (Zuffa LLC v. LGRE,WIPO
Case No. D2001-0458, Annex 6 to the Response). The Respondent submits that
inference of future activities cannot possibly be used to satisfy Complainant's
burden of proof of bad faith since the alleged activities havenít happened yet
(M.T.C. Inc. v. NetL@tino Inc., WIPO
Case D2002-0088, Annex 7).

The Respondent submitted
that there is no evidence that the Respondent offered to sell the domain name
to the Complainant for a sum in excess of Respondent's legitimate costs of acquiring
the domain name.

The Respondent attached
as Annex 9 to the Response a Network Solutions WHO IS Database for wild-card
searches which was able to search for and match over 2,300 currently registered
domain names from the .com, .net, and .org TLD's that contained the name "unix".
Respondent submits that the registrations set a fair precedent as to what the
Complainant considers to be acceptable use of the UNIX trademark. The Respondent
refers to the fact that a search of the ICANN UDRP Decisions database yielded
no decision of proceedings involving the term "unix" where Complainant was the
Complainant.

Respondent's next submission
appears to be one of acquiescence submitting that the Complainant has waited
nine years since acquiring the trade-mark UNIX before seeking to enforce the
trademark UNIX using the UDRP.

6. Discussion and Findings

Paragraph 15(a) of the
Rules instructs the Panel to "decide a complaint on the basis of the statements
and documents submitted in accordance with the policy, these rules and any rules
and principles of law that it deems applicable".

In accordance with Paragraph
4(a) of the Policy, the Complainant has the burden of proving three elements:

(i) That the Complainant
has rights in a trademark or service mark with which the Respondent's Domain
Name is identical or confusingly similar;

(ii) That the Respondent
has no rights or legitimate interests in the Domain Name; and

(iii) That the Domain
Name has been registered and is being used in bad faith.

6.1 Identical or Confusingly
Similar Trade-Marks and Domain Names

The Respondent does not
dispute the allegation that the domain name in dispute is identical or confusingly
similar to the Complainant's trademark UNIX. The domain name <unix.org>
is comprised of the Complainant's trademark UNIX together with the generic term
".org". The trade-mark UNIX is a created word and trademark of substantial inherent
distinctiveness.

The Respondent submits
that the trademark UNIX is unenforceable by reason of loss of distinctiveness
caused by alleged generic use by others resulting in the trademark becoming
an identifier of goods or services and not an identifier of goods or services
of the Complainant. The trademark UNIX has been registered in the United States
Patent and Trademark Office since as early as May 6, 1986 in relation to computer
programs under International Trademark Classes 9 and 38. The trademark UNIX
is a registered trademark or the subject of pending trademark applications in
seventy-five or more countries throughout the world. Copies of signed License
Agreements between X/Open and a number of licensees are attached and marked
as Annex 4. Amongst the licensees are many of the leading computer companies
of the world including Unisyi Corporation, Siemens Nixdorf Informationssyteme
AG, Sun Microsystems, Inc. Novell, Inc., Hewlett-Packard Company, AT&T Global
Information Solutions, Bull S.A., International Business Machines Corporation
(IBM), Digital Equipment Corporation, The Santa Cruz Operation, Inc., Hitachi
Limited, Silicon Graphics, Inc., Stratus Computer, Inc., Dansk Data Electronik
A/S, Fujitsu Limited, NEC Corporation and NCR Corporation amongst others. The
licensees are entitled to use the trademark UNIX in relation to manuals, training
articles, software and other information about the UNIX system.

Annex 5 to the Complaint
includes particulars of U.S. Trademark Registration Number 1,392,203 for the
Trademark UNIX. The particulars of the registration disclose that the Complainant
or its predecessors were Plaintiffs in Opposition proceedings against Serial
No. 73705420, UNIXU; Serial No. 74306860, UNIX; Serial No. 74362035, TEAMUNIX;
Serial No. 75410254, SYNTUNIX; Serial No. 75436911, @UNIX and Serial No. 75365208,
UBIX.

Particulars of United States
Trademark Registration No. 1,390,593 for the trademark UNIX states that the
Complainant or its predecessors in title were Plaintiffs in Opposition proceedings
involving Serial No. 73698917, UNIX; Serial No. 74399958, USIX; Serial No. 74340192,
LNX SYSTEMS and was the Plaintiff in Cancellation Proceedings against Serial
No. 73458534 for the trademark USA UNIX SYSTEMS ASSOCIATION.

In Annex 2 to the Response
the Respondent includes a printout of search results for "UNIX" at Google. Many
of the entries include the names of licensees of the UNIX trademark. Other entries
relate to reviews, features and commentary about the UNIX system. None of the
web addresses include "unix" alone in association with a gTLD or a ccTLD. Attached
as Annex 9 to the Response is a list of other registered domain names containing
"unix". None of the domain names in the list disclose a domain name consisting
of UNIX alone or together with a gTLD or a ccTLD.

The United States registrations
are prima facie evidence of the validity of the trademarks. EAuto, L.L.C.
v. Triple S. Auto Parts a/b/a/ Kung Fu Yea Enterprises, Inc., WIPO
Case No. D2000-0047. The evidence of the Respondent does show that the trademark
UNIX is not used alone without a descriptive qualifier and is not licensed or
authorized to be used alone without a descriptive qualifier. The UDRP Policy
and Rules are not intended as a forum to decide on loss of the validity of a
trademark registration for loss of distinctiveness. There is no opportunity
for a Complainant to respond to such an allegation. In any event having regard
to the Complainant's License Agreements and actions in defending its trademarks
referred to above, the Respondent's evidence presented in this proceeding is
insufficient to establish a loss of distinctiveness. The above conclusion is
of course of no precedential value should the Respondent wish to attack the
validity of the trademark UNIX in another proceeding.

6.2 The second matter
which the Complainant must prove is that the Respondent has no rights or legitimate
interest in the domain name in dispute. The Respondent submits that the Respondent's
demonstrated preparation to use the domain name in dispute is permitted by the
Complainant's Trademark License Agreement (see Complaint Annex 3, Schedules
5 of the "Trademark Usage Guide", s.1.3). The section provides that the trademark
may be used in editorials or articles where use of the trademark is either desirable
or unavoidable. Such use of trademarks is permitted without the requirement
for the user to be licensed, provided the rules in the Guide are followed. The
Guide states at page 41 that trademarks should be used as adjectives and not
as nouns. The domain name in dispute does not constitute a proper use of the
trademark as it is not followed by a noun explaining that the site is for editorials
and articles in support of the UNIX system based operating system and compatible
software.

The Panel finds that the
use of UNIX as part of the domain name not followed by a noun is a misuse of
the trademark not authorized by the Complainant. The evidence submitted by the
Respondent as seen in Annex 2 show the use of UNIX in combination such as UnixReview.com;
UNIX Reference Desk and UNIX Training a sponsored link, all being uses of UNIX
as an adjective in association with a noun defining the goods or services.

Annex 5 to the Response
is a partially developed unix.org web page. The partially developed web page
identifies UNIX as a registered trademark of The Open Group. Reviewing the partially
developed web page leads one to conclude that the web page is sponsored by The
Open Group.

6.3 The third matter
which the Complainant must prove is that the domain name has been registered
and is being used in bad faith. The trademark UNIX is a created word used in
association with an operating system. The trademark is well known to those involved
with operating systems. At the time of registration of the domain name the Respondent
was aware of the trademark. The Respondent's partially developed web page attributes
ownership of the trademark to the Complainant.

The Respondent has been
passively holding the domain name for over half a year while the Respondent
was involved with another matter. The Respondent states that it was Respondent's
intention to develop a non-commercial site for the domain name containing editorials
and articles about and in support of UNIX system-based operating systems and
compatible software for the technology community.

Paragraph 4 of the UDRP
Policy identifies, without limitations, circumstances that "shall be evidence
of the registration and use of a domain name in bad faith", for the purposes
of paragraph 4(a)(iii). As stated in Telstra Corporation Limited v Nuclear Marshmallows,
Case
No. D2000-0003 only one of these circumstances (paragraph 4(b)(iv), by necessity
involves a positive action post-registration undertaken in relation to the domain
name (using the name to attract custom to a web site or other on-line location.
The Panel in Telstra posed the question Ö "what circumstances of inaction (passive
holding) other than those identified in paragraph 4(b)(i)(ii) and (iii) can
constitute a domain name being used in bad faith. A remedy can be obtained under
the Uniform Policy only if those circumstances of the Respondent's passive holding
amounts to acting in bad faith.

The Administrative Panel
has considered whether, in the circumstances of this particular Complaint, the
passive holding of the domain name amounts to the Respondent acting in bad faith.
The particular circumstances of this case that lead to the conclusion that the
passive holding of the domain name is bad faith are:

(i) The Complainant's
trademark is a created inherently distinctive trademark.

(ii) The Complainant's
trademark is very well known in respect of an operating system and compatible
software for the technology community.

(iii) The Complainant
licenses the trademark to many of the leading companies in the computer world
for use in relation to the operating system and compatible software subject
to limitations as to the presentation of the trademark and quality of the system
or compatible software. The Complainant licenses third parties to use the trademark
as an adjective in association with a noun for articles, review and editorials.
The domain name in dispute <unix.org> is stated by the Respondent as intended
to be used in association with articles and reviews relating to the UNIX system.
The form of the domain name in which the domain name is registered using the
trademark as a noun is contrary to the Complainant's Policy for licensees and
third parties.

(iv) The Respondent
purchased the domain name in dispute for $5,000 U.S.D. from the previous owner.
The Respondent's stated intention is to develop a non-commercial site for the
domain name containing articles in support of UNIX system-based operating systems
and compatible software for the technology community. The home page of Respondent's
corporation Byterage, Inc. includes many commercial links including astalavista.box.sk
having links to a casino.

The Respondent's partially
developed <unix.org> web page which is attached as Annex 5 to the Response
features four references to UNIX as a registered trademark of the Complainant
and no references to the Respondent. Under the heading "Other valuable resources"
of the partially developed web site is a proposed linkage to <sendmail.org>,
a web site which includes commercial offers of products and services.

The inference from the
above evidence is that the Respondent's planned and partially developed web
site while it may include articles relating to the UNIX system is already designed
to contain links to commercial sites.

The Panel concludes that
the domain name has been registered and is being used in bad faith.

The Panel has considered
the Respondent's submissions on the subject of reverse domain hijacking. The
Complainant has in the past commenced opposition proceedings, cancellation proceedings
and proceedings under the UDRP Policy against others using the trade-mark UNIX
as a trademark or the dominant part of a domain name. The Panel concludes that
the Complainant has neither been opportunistic nor displayed malice towards
the Respondent in this proceeding. The submissions of reverse hijacking are
not supported by the evidence.

7. Decision

For the foregoing reasons,
the Panel decides:

(a) That the domain
name registered by the Respondent is confusingly similar to the trademark to
which the Complainant has rights;

(b) That the Respondent
has no rights or legitimate interests in respect of the domain name; and

(c) The Respondent's
domain name has been registered and is being used in bad faith.

Accordingly, pursuant to
Paragraph 4(i) of the Policy, the Panel requires that the registration of the
domain name <unix.org> be transferred to the Complainant.